Rough waters for the Pirate Bay this week

You know an internet law story is real news when the national media calls me. I’m obviously the most important and telegenic internet law expert in Canada. While my CTV Canada AM appearance was cancelled at the last minute, CBC online contacted me yesterday for a comment on the Pirate Bay raid and torrents in general for an article that should be up soon (update – voilà). Is the Pirate Bay sunk? Let’s review. And speculate wildly! My specialty!

So the big news about Pirate Bay this week can be summed up in this succinct headline: “Pirate Bay shut down following Swedish raid”. Let the Swedish Authorities explain:

“We had a crackdown on a server room in Greater Stockholm because of a copyright infringement, and yes it was Pirate Bay,” Paul Pinter, national coordinator, intellectual property crime at Stockholm County Police told Reuters.

Following the raid, the website at http://thepiratebay.se was indeed down. The .se means it is a Swedish address. Now, the Pirate Bay has been down before. It usually popped up again pretty quickly. This week, it did not. An hour went by, then a day, then two days. Still nothing. The media came calling to me. Was Pirate Bay toast? Is this the end of torrenting as we know it?

The Swedish raid was not the only bad Pirate Bay news in the past week though. At the end of last week, a court in France ordered that French ISPs must block access to the Pirate Bay within two weeks. France thus joins a relatively long list of countries who block access to the site in one way or another. Also, there are reports that the MPAA is going to try the same route and have torrent sites blocked in the U.S.

Not only that, but after the Pirate Bay went down this week, one of the site’s founders, Peter Sunde, said that the site should stay closed. Now, he seemed less interested in copyright violations and more upset about the site itself, that it had too many ads for viagra and sexxxytime. Well, he’s right about that. But still, when one of your own turns on you, it can’t be a good week.

With all this news, of course it got me to thinking. Torrents and “illegal” downloading are my specialty. I wrote my Masters of Law thesis on the topic. The torrent tag on this blog has the most entries (I think, I’m too lazy to count) of any tag. This time I know of what I speak, unlike other times. I have things to say.

So let me answer the questions Canada AM never got to ask. And maybe answer them with more swearing and snark than would have been acceptable on the national news. Everyone wins.

Is the Pirate Bay toast?

Ha! In your dreams, copyright owners! First off, as of this writing, the Pirate Bay has re-emerged at a Costa Rican domain. Also, yesterday the head of the Pirate Party in Sweden said this:

basically, each time you shut the Pirate Bay down, we will multiply…If you just take one server away, it will have many copies somewhere else. It will not help at all.

Seems pretty clear.

UPDATED TO ADD – A friend and very bright guy just alerted me to the fact that the Costa Rican Pirate Bay is in fact fake and will give you malware. Whoopsie! He got it from this article. I’ve removed the link. But I don’t think this changes my feeling that the Pirate Bay will re-emerge.

How is that possible?

You need to understand how torrents work. You need to understand what the Pirate Bay actually does. You can take away the Pirate Bay servers, but that means nothing. NOTHING.

When you “download via Pirate Bay” you are not downloading from Pirate Bay. To simplify, Pirate Bay just points you in the right direction. The actual files you download come from your neighbour down the street and a dude in Alaska and an Italian grandmother. To expand our simplification, Pirate Bay just points you in the direction of the file (the torrent) that will point you in the direction of the file you want to download (the Sons of Anarchy series finale). Got it?

So the actual files on the Pirate Bay web servers are quite limited. In fact, if you wanted to you can download an actual copy of the entire Pirate Bay website so you would have it in your home. A website in your home! What a world we live in.

Because the actual Pirate Bay site is so small, and a lot of people have backup copies of the site, it’s easy to put it up anywhere, and pretty quickly.

Even if the Pirate Bay went down forever, would it matter?

Fuck and No. They got isoHunt, did that stop torrenting? Of course not. Even if the Pirate Bay disappeared forever, someone will take its place. They’re already here. Here’s one. And another. And another. You get the point. Not to mention the “private trackers” (e.g.) that do the same thing for its members only. Not to mention even isoHunt is back in a different form. And isoHunt even brought back the Pirate Bay sort of. Jebus, my head hurts. Torrenting is impossible to stop altogether.

(Bev Thomson asks) What does all this mean for the average Canadian downloader?

Well Bev, the average Canadian downloader is pretty lucky to be honest. Recent changes to the Copyright Act mean that even if you are caught downloading, the maximum amount you might be fined is $5000, if you don’t sell any of your downloads. Most likely it would be much less. And downloading for your own personal use is not “criminal” in Canada.

What can the average Canadian downloader look forward to in the future?

Well interestingly Bev, a new part of the Copyright Act is coming into force January 1st. It is what is called the “notice and notice regime“. It means that if an ISP receives a notice from a copyright holder that one of the ISP’s clients is violating copyright, for example by torrenting a movie, the notice must be forwarded to the ISP client. So Canadian downloaders might be receiving a lot of these notices in the new year, as the copyright owners test out the new regime.

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.